Syllabus
Topics
1. The Concept of Europe • The Historical Emergence of Eastern Europe • The Emergence of Central and Eastern European Legal Tradition • The Issue of Human Rights in the Region
2. Marxism and Law • Positivism or Anti-Positivism? • The Role of Judges and Law in Marxist Theory
3. The Practice in the 1950’s: The Stalinist Judicial Culture: General Features, its Central European Variations • The Emergence and the Decline of Communist Anti-Positivism • Emancipation Thesis alas Some Positive Features of the Communist Legal Culture
4. The Practice in the 1970’s and 1980’s: Communist Post-Stalinist Legal Culture in Central Europe • Making a Post-Stalinist Ultra-Positivism
5. The 1990s and the Early 2000s: The Transformation of Post-Communist Legal Systems • Dealing with the Communist Crimes • Lustration • Judiciary
6. Constitutional Courts of Central Europe • The Transformation of the Legal System via Constitutional Adjudication • The Emergence of New Constitutionalism
7. –
8. Democratic Backsliding • The Fall of New Constitutionalism • The Rise of New Authoritarianism • Poland and Hungary • The Power of the EU • European Court of Human Rights and Democratic Backsliding 9-10. Constitutional Systems of the New EU Countries: Bulgaria, Romania, Croatia (Lectures by Professor Hofmann) Course Goals / Learning Outcomes: Upon completion of this course, students will be able to: ● get basic orientation in the legal systems of Central Europe and the EU ● get basic information about the legal and constitutional systems in the region and will be able to understand the problems liberal democracies face in Central Europe ● will become familiar with the region’s past and current problems vis-à-vis law and human rights Reading is based on the coursepack, including: Topics 1-6: Mirjan DAMAŠKA: The Faces of Justice and State Authority. A Comparative Approach to the Legal Process. New Haven, London, Yale University Press,
1986.Agata FIJALKOWSKI: The Judiciary’s Struggle towards the Rule of Law in Poland, in: The Rule of Law in Central Europe (Jiří Přibáň, James Young eds.), Dartmouth: Ashgate, 1999John HAZARD: Communists and their Law. A Search for the Common Core of the Legal Systems of the Marxian Socialist States. The University of Chicago Press, Chicago, London, 1969Martijn W. HESSELINK: The New European Legal Culture, Kluwer-Deventer, 2001Zdeněk KÜHN: Worlds Apart. American Journal of Comparative Law, 2004LENIN V. I.: State and Revolution. http://www.marxists.org (excerpts)Wojciech SADURSKI: Marxism and legal positivism, in: Essays In Legal Theory (Galligan D. J., ed.), Melbourne University Press, Victoria, 1984Larry WOLFF: Inventing Eastern Europe, Stanford, 1994 Topics 7-10: Stanimir ALEXANDROV: Paving the way for Bulgaria’s accession to the European Union. - Fordham international law journal, 21 (1998) 3, pp. 587-601Davor BOŽINOVIČ: Croatia and the European Union, in: Review of international affairs, 54 (2003) 1111, pp. 25-31Dinesh D. BANANI: Reforming history: Turkey’s legal regime and its potential accession to the European Union, in: Boston College international and comparative law review, 26 (2003) 1, pp. 113-127The selected case law and statutes
Annotation
This course focuses on the legal culture of Central Europe, particularly on Poland, Hungary and the countries of former Czechoslovakia. We would briefly explain the origins of Central European legal culture.
After this historical introduction, we would deal with the communist legal culture as developed in the four decades of Eastern European communism and with its impact on the transforming Central European legal cultures. We will compare various features of legal and judicial culture and its ideology in Central Europe with Western European legal culture.
Last but not least, the issue of democratic backsliding in the region will be addressed. Although targeting central Europe proper, we will also debate the development in other countries (Ukraine, Russia, the Baltic states, the Balkans etc.).